Division 3 Application to participate in the auction
28 Making an application
(1) A person may apply to become registered as a bidder in the auction by:
giving the ACMA a completed application form; and
giving the ACMA a deed of acknowledgement executed by the applicant; and
giving the ACMA a deed of confidentiality executed by the applicant; and
paying the application fee;
before the application deadline.
Note: For information on how an application fee must be paid, see section 9.
(2) After the application deadline and no later than the eligibility deadline, an applicant must:
give the ACMA a completed eligibility nomination form, which:
specifies the number of lots of each product desired by the applicant as valid provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and
specifies the maximum eligibility points of the applicant, based on the specified provisional start demands; and
in relation to each product, either does not select a provisional minimum spectrum requirement, or selects only one option as the provisional minimum spectrum requirement, for the lots of each product; and
in accordance with section 36, do one of the following:
make an eligibility payment of an amount to the ACMA on behalf of the Commonwealth;
give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount;
make an eligibility payment of part of an amount and give a deed of financial security for the remainder.
Note: For information on how an eligibility payment is made, see section 9. For information on how a deed of financial security is given, see section 7 and subsections 36(7) and 36(8).
(3) For paragraph (2)(b), amount, in relation to a person, has the meaning given by subsection 36(2).
(4) Subject to subsection 39(1), if, before the eligibility deadline, an applicant has not:
given the ACMA a completed eligibility nomination form; and
made an eligibility payment to the ACMA on behalf of the Commonwealth, or given a deed of financial security to the ACMA on behalf of the Commonwealth, or a combination of both;
in accordance with subsection (2), the applicant is taken to have withdrawn its application.
(5) Subject to subsections 39(3) and 39(4), an applicant may give the ACMA an updated document:
for paragraph (1)(a), (1)(b) or (1)(c) – at any time until the application deadline, but not after the application deadline; or
for paragraph (2)(a), or subparagraph (2)(b)(ii) or (2)(b)(iii) – at any time until the eligibility deadline, but not after the eligibility deadline.
(6) If a deed of financial security (for subparagraph (2)(b)(ii) or (2)(b)(iii)) is given to the ACMA on behalf of the Commonwealth by email before the eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the application to be valid.
29 Provisional start demand validity rules for application
(1) For the purposes of subparagraph 28(2)(a)(i) or paragraph 34(6)(a) or paragraph 39(1)(a) or subparagraph 41(2)(a)(i), a provisional start demand of an applicant for lots of a product is valid if both of the following apply in relation to the provisional start demand:
the total size of the lots of the product for the provisional start demand does not exceed the applicant’s allocation limits (when expressed in MHz):
applicable to the product, other than a lower band product and an upper band product; or
applicable to any one of the combined products; and
the number of lots for the applicant’s provisional start demand of the product is not greater than the number of lots for the supply of the product.
Note: The spectrum licence limits direction sets limits on the allocation of spectrum licences to a single person, or a specified group of persons, in designated areas. However, in the marketing plan, the lots in the Greater Perth, Hobart and Margaret River areas are each divided into two different products, such that each area has a lower band product and an upper band product. For the purposes of the allocation limits, the two products of each area are treated as just one product. For all other purposes, they are to be treated as two products.
(2) In subsection (1), supply has the meaning given by subclause 2(1) of Schedule 1.
30 Applicants to notify ACMA if application information incorrect
(1) If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.
(2) The auction manager may correct the information in the application if the auction manager is satisfied that the information is incorrect, such as it containing a clerical error or an obvious mistake or omission.
31 Applicant to make statutory declaration
(1) After the application deadline, the ACMA must:
give each applicant details about the identity of all other applicants, and the persons identified as the associates of other applicants; and
ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant and, if so, identifying the other applicant and giving details of the affiliation.
(2) The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statutory declaration must be received by the ACMA.
32 Failure to give statutory declaration
If an applicant does not give the ACMA a statutory declaration in accordance with section 31, the applicant is taken to have withdrawn its application.
33 Procedure if ACMA satisfied applicants are affiliated
(1) If the ACMA is satisfied that two or more applicants are affiliated, the ACMA must, in writing:
notify the applicants and tell them the basis on which the ACMA is satisfied the applicants are affiliated; and
notify the affiliated applicants that to participate in the auction they must:
withdraw the applications of all the affiliated applicants and submit a new application under section 34; or
withdraw the applications of all but one of the affiliated applicants.
(2) Within 10 working days of the ACMA notifying the affiliated applicants under subsection (1), the applicants must notify the ACMA in writing which option under paragraph (1)(b) the applicants have decided to take.
(3) If the affiliated applicants do not notify the ACMA within those 10 working days, the applicants are taken to have withdrawn their applications.
(4) If some of the affiliated applicants withdraw their applications, but more than one affiliated applicant does not, the remaining affiliated applicants are taken to have withdrawn their applications.
(5) The ACMA must tell the applicants in writing if they are taken to have withdrawn under subsection (3) or (4).
34 Requirements for new application
(1) If a group of affiliated applicants notified by the ACMA under subsection 33(1) decide to submit a new application, the new applicant must be a body corporate whose only members are one or more of those affiliated applicants.
(2) The new applicant must, within 10 working days of the ACMA notifying the affiliated applicants under subsection 33(1):
(a) give the ACMA a completed application form; and
(b) pay the application fee.
Note: For information on how an application fee must be paid, see section 9.
(3) If the ACMA receives a completed application form and application fee under subsection (2), the ACMA must give each applicant (including the new applicant) updated details about the identity of all other applicants, and the persons identified as the associates of other applicants.
(4) The updated information does not need to include those applicants who have already withdrawn.
(5) The new applicant must, no later than 3 working days after the ACMA gives the new applicant the updated information (or, if the ACMA agrees to a later time, the agreed time):
give the ACMA a deed of acknowledgement executed by the applicant; and
give the ACMA a deed of confidentiality executed by the applicant; and
make and give the ACMA a statutory declaration that the new applicant is not affiliated with any other applicant mentioned in the updated information.
(6) The new applicant must, no later than the eligibility deadline or extended eligibility deadline (if there is one), whichever is the case (or, if the ACMA agrees to a later time, the agreed time):
give the ACMA:
a completed eligibility nomination form, which includes the matters set out in paragraph 28(2)(a); or
a completed updated eligibility nomination form, which includes the matters set out in paragraph 41(2)(a); and
in accordance with section 36, do one of the following:
make an eligibility payment of an amount to the ACMA on behalf of the Commonwealth;
give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount;
make an eligibility payment of part of an amount and give a deed of financial security for the remainder.
Note: For information on how an eligibility payment is made, see section 9. For information on how a deed of financial security is given, see section 7 and subsections 36(7) and 36(8).
(7) For paragraph (6)(b), amount, in relation to a person, has the meaning given by subsection 36(2).
(8) If a deed of financial security (for subparagraph (6)(b)(ii) or (6)(b)(iii)) is given to the ACMA on behalf of the Commonwealth by email before the eligibility deadline or extended eligibility deadline (if there is one), whichever is the case, the original deed must be received by the ACMA no later than 3 working days after the relevant deadline (or, if the ACMA agrees to a later time, the agreed time) for the application to be valid.
(9) The ACMA must not accept a new application under this section unless it is satisfied that the new applicant is not affiliated with any applicant who has not withdrawn, including another new applicant.